EEOC Publishes Warning against Caregiver Discrimination

On March 14, the Equal Employment Opportunity Commission (EEOC) issued guidance reminding employers that during the COVID-19 crisis, many employees have taken on the role of caregivers to family members. The guidance states that discrimination against a caregiver may be unlawful under the laws enforced by the EEOC.

Discrimination against Caregivers

Illegal discrimination against caregivers may take many forms. For example, if an employer refuses to hire a female applicant because the employer assumes she will take days off to care for family members, that is discrimination.

Likewise, it is illegal to fail to grant time off to a male employee for caregiving duties if time off is given to female employees. It is unlawful to refuse to give female employees demanding work that can lead to a promotion if the reason is that it is feared that the female employees will take time off for caregiving.

It is also illegal to penalize one sex more harshly for taking time off for caregiving than the other. “It also would be unlawful, for example, for an employer to refuse requests for exceptions from return-to-work policies or attendance policies made by men with caregiving responsibilities, based on their gender.”

Discrimination, race or national origin, and caregiving

It is also illegal to discriminate based on race or national origin. “For example, employers may not subject Asian employees with caregiving responsibilities to more scrutiny by requiring additional proof of Asian caregivers’ COVID-19 vaccination status or additional proof of their family’s COVID-19 vaccination by an independent third party (someone other than the employer or the employer’s agent), because COVID-19 was first identified in an Asian country.”

Discrimination, disabled employees, and caregiving

These same examples also apply to disabled employees and caregiving. It is discrimination to treat them differently than able employees when it comes to caregiving.

This also applies if an able employee has a disabled family member or partner. “[I]t would be unlawful, for example, for an employer to decline to hire an applicant because her wife has a disability that puts the applicant’s wife at higher risk of severe illness from COVID-19, and the employer fears that its health insurance costs will increase if the applicant’s wife is added to its healthcare plan.”

Discrimination, LGBT+ employees, and caregiving

The EEOC also highlighted discrimination against LGBT+ employees regarding caregiving. “Employers also may not, for example, deny caregiving leave to an employee with a same-sex partner based on the sexual orientation or gender identity of the employee or the employee’s partner.”

Pregnancy, employees, and caregiving

When it comes to pregnancy, employers cannot require that a pregnant employee work from home or adjust her schedule to avoid contact with coworkers. While a pregnant employee may desire such an accommodation, it cannot be forced upon her. On the other hand, a pregnant employee has the right to an accommodation, if her condition is such that she needs an accommodation to continue working.

Accommodations, scheduling, and caregiving

This is not to say that federal antidiscrimination laws grant employees the right to telework, work from home, or extra time off for caregiving duties. The laws simply provide that employers cannot discriminate in their giving of time off on the basis of sex, pregnancy, sexual orientation, gender identity, race, color, religion, national origin, age (40 or older), disability, or genetic information. Employers can still require that employees work according to a schedule that does not violate the law, such as the Fair Labor Standards Act.

Employers can also grant requests for predictable scheduling or fewer hours so long as they do so in a nondiscriminatory manner, even if the more predictable scheduling lessens the opportunity for promotion. Similarly, employers are not required to excuse poor performance due to COVID-19 caregiving. “For example, if an employer provides written warnings to employees who repeatedly arrive late to work, the employer may issue those warnings to employees who are repeatedly late because of pandemic-related caregiving obligations.”

Employers must be consistent, however, in the application of their policies. It is discrimination to apply the rules differently based on sex or the other protected categories.

Harassment

It is illegal to harass employees based on their COVID-19 caregiving. For example, making disparaging remarks about an employee’s absences due to caregiving constitutes harassment. Likewise, “Accusing female employees, without justification, of being preoccupied with keeping their families safe from COVID-19, distracted from their professional obligations, and insufficiently committed to their jobs” is harassment.

Similarly, “making offensive comments about gay or lesbian employees’ sexual orientation after they request leave to care for their same-sex spouse, partner, or ex-partner, who has COVID-19 symptoms” constitutes harassment.

It is also harassment to set unrealistic deadlines or to overwork employees because of their protected class, if they take time off to take care of a loved one with COVID-19. It is discrimination to ask whether it is “worth the risk” to keep an older employee, given the increased risk of COVID-19 infection among older people.

The Benefits of Flexibility

According to the EEOC, employers can benefit from allowing employees flexible schedules to allow for COVID-19 caregiving. Specifically, the EEOC says that

Numerous studies have found that flexible workplace policies enhance employee productivity, reduce absenteeism, reduce costs, and appear to positively affect profits. They also aid recruitment and retention efforts, allowing employers to retain a talented, knowledgeable workforce and save the money and time that would otherwise have been spent recruiting, interviewing, selecting and training new employees.

The EEOC further recommends that employers “Develop, disseminate, and enforce a strong EEO policy that clearly addresses the types of conduct that might constitute unlawful discrimination against caregivers based on characteristics protected by federal anti-discrimination laws.” This includes writing a policy that clearly defines terms such as “caregiver” and “family member” to be inclusive of protected classes.

The policy can also provide examples of common stereotypes and types of discrimination that are to be avoided. The policy can also make clear that retaliation and harassment are not permitted, and provide examples. Upper management can then make sure that the policy is followed at all levels of the company, and that all employees are familiar with the anti-discriminatory policy of the company.

Conclusion

COVID-19 has led many employees to ask for time off to care for a loved one. Employers are not obligated by law to grant extra time off, but they can violate the law if they grant or refuse time off in a discriminatory manner, or if they harass employees who take time off. Employers are encouraged to be flexible with time off requests, as this can help retain workers. Employers are also encouraged to develop strong anti-discrimination policies and enforce them consistently.